Claiming he is actually innocent of the crime of rape in the first degree, Holloway seeks habeas relief in a 28 U.S.C. § 2254 petition filed on May 5, 2011, which is some eight years after his 2003 conviction became final. Pursuant to Rules 8(a), Rules Governing Section 2254 Cases in the United States District Courts, the court concludes that the petition for habeas corpus relief is due to be denied.

I. Procedural History

Prior to the 2003 indictment for rape which is the subject of the instant petition, on February 22, 2002, Holloway was indicted in the Randolph County Circuit Court for enticing a child for immoral purposes in violation of ALA. CODE § 13A-6-69. In that indictment the child was named, but the redacted indictment which is in the record before the court identifies her as MW. (Doc. # 23-2 at p. 2).[1] One year later, on February 21, 2003, Holloway was indicted in the Randolph County Circuit Court for first-degree rape of his daughter N.H. (doc. # 16-1 at 12) in violation of ALA. CODE § 13A-6-61 and for incest in violation of ALA. CODE § 13A-13-3. (Doc. # 23-2 at 29). On November 4, 2003, pursuant to a plea agreement, Holloway entered a guilty plea to first degree rape and to enticing a child for immoral purpose. The prosecution agreed to drop the incest charge as part of the plea bargain. Holloway was sentenced to serve a term of seventeen (17) years imprisonment on the first-degree rape conviction and a concurrent three (3) year term of imprisonment on the enticing a child for immoral purposes conviction. (Doc. # 23-3, Plea colloquy and sentencing). Holloway did not take a direct appeal because he waived his right to appeal as part of the plea bargain. (doc. # 23-3 at 4) Thus, his conviction became final on December 16, 2003. ALA. R. APP. P. 4(b)(1).

Some six years later, on November 25, 2009, Holloway filed in state court an ALA. R. CRIM. P. 32 petition for postconviction relief.[2] The trial court summarily denied the petition as untimely. This time Holloway did appeal, but on August 20, 2010, in a memorandum opinion the Alabama Court of Criminal Appeals affirmed the dismissal of Holloway's postconviction petition. (Doc. # 14-5). The Alabama Court of Criminal Appeals found that the trial court did not err in dismissing Holloway's petition because his nonjurisdictional claims were filed well after the one year time limitation established in ALA. R. CRIM. P. 32.2(c). The court also found that Holloway's claims of newly discovered evidence showing his innocence did not entitle him to relief because he failed to establish that the evidence was unknown to him and could not have been discovered through reasonable diligence. Holloway did not seek certiorari review in the Alabama Supreme Court.

Holloway's 28 U.S.C. § 2254 petition challenging his first degree rape conviction was filed in this court on May 5, 2011. These are Holloway's claims as stated by him:

1. Actual innocence - fundamental miscarriage of justice. Constitutional violations have resulted in the conviction of one who is actually innocent and had the evidence been presented it is more likely than not that no reasonable juror would have found Holloway guilty beyond a reasonable doubt.

2. The prosecution gained the conviction by the unconstitutional failure to disclose evidence favorable to the defendant. The prosecution failed to disclose a physical examination resulted (sic) which concluded that the alleged victim's hymen was in tact (sic) and showed no signs of sexual abuse and that the victim had never engaged in any form of sexual intercourse and since sexual intercourse is a essential prerequisite (sic) to Rape first degree the physical examination proves Holloways (sic) actual innocence. The prosecution also failed to disclose a mental examination result which concluded that the alleged victim was making these allegations up. The prosecution also failed to disclose exculpatory statements, incident reports etc. (sic)

3. Denial of effective assistance of counsel. The defense counsel failed to investigate the case and request that the trial court conduct an in camera review of the Randolph County D. H. R. file which contained a physical examination result, mental examination result as well as other exculpatory evidence that would have proven the petitioner's innocence. The defense counsel's failure to investigate the case coupled with the prosecutions (sic) failure to disclose exculpatory evidence rendered the defense counsel useless. So the defense counsel mislead this petitioner into a guilty plea then the alleged victim appeared and testified that Holloway was innocent. Holloway requested to withdraw the plea and the defense counsel failed to appeal the trial court decision which resulted in the conviction of an innocent man.

4. Plea of guilt was unknowingly induced, not voluntary or intelligently entered. The defense counsel could not defend Holloway due to the prosecutions (sic) failure to disclose exculpatory evidence the trial counsels failure to fully investigate the case. Therefore, Holloway was forced into a plea of guilt and the trial counsel could not intelligently advise Holloway to plead guilty in light of the exculpatory evidence not being disclosed then after the petitioner plead guilty Holloway requested to with draw the plea the judge refused to allow him to withdraw the plea.

5. Ground five the conviction was gained by the use of perjured testimony. The entire case was built on one statement and the alleged victim appeared at the sentencing hearing and testified that the statement was a lie. The prosecution as well as the trial court had a constitutional duty under due process to stop the prosecution.

(Doc. # 1 at 5-6).

II. Timing and Procedural Deficiencies

In response to Holloway's petition, the respondents contend it is barred by the one-year limitation period applicable to 28 U.S.C. § 2254 petitions. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets a one-year statute of limitations for filing a federal habeas petition challenging a state court judgment. 28 U.S.C. § 2244(d)(1). The statute of limitations starts running on the latest of: "(A) the date on which the judgment became final by the conclusion of direct review... or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(A), (D). Under either trigger date, the limitations period is tolled during the time "a properly filed application for State post-conviction or other collateral review... is pending." Id. § 2244(d)(2).

As explained above, Holloway's rape conviction became final in 2003 which is after the effective date of the federal statute of limitations.[3] Therefore, Holloway was required to file his § 2254 petition within one year of the date his conviction became final, exclusive of the time that any properly filed state post-conviction petition related to his conviction remained pending in state court. Holloway filed a state post-conviction petition challenging his murder conviction on November 25, 2009. However, this petition failed to toll the one-year period of limitation because it was not filed within the limitation period required by state law and, therefore, was not "properly filed" for the purpose of tolling the federal limitation period. See 28 U.S.C. § 2244(d)(2). See also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) ("Because the state court rejected petitioner's [state post-conviction] petition as untimely, it was not properly filed, ' and he is not entitled to statutory tolling [of the limitation period] under § 2244(d)(2)."); Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006) (untimely collateral motion deemed "not properly filed' under § 2244(d), and it could not toll the federal one-year period of limitation.") Additionally, the respondents contend that all of Holloway's claims are procedurally defaulted because either the claims were not raised in Holloway's postconviction petition or were improperly raised through inadequate pleading. (Doc. # 16 at 14-15).

III. Discussion

A. Holloway's Actual Innocence Claim is a Gateway Claim. Holloway does not dispute that his claims are barred by the limitation period contained in § 2244(d) as well as procedurally defaulted. However, Holloway claims that newly discovered evidence shows that he is actually innocent of rape and that his innocence excuses his failure to timely seek relief or properly exhaust his claims in state court. As such, Holloway's actual innocence claim is not itself the constitutional basis of his habeas petition. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (holding that no federal habeas relief is available for freestanding, non-capital claims of actual innocence). Rather, Holloway's actual innocence claim is a "gateway" claim, that is, a claim which, if successful, creates an exception to procedural or timeliness bars and allows this court to consider his constitutional claims. See McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928 (2013) ("We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... or... expiration of the statute of limitations."); Schlup v. Delo, 513 U.S. 298 (1995); Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001). To be successful, Holloway must

(1) present "new reliable evidence... that was not presented at trial, "... and (2) to show "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt" in light of the new evidence.

But, there is a further hurdle which Holloway must surmount first before the court may consider his claims. Holloway must make a sufficient showing of his actual innocence before this court may consider whether an exception to the bars should be granted. Rozzelle, 672 F.3d at 1010 ("our inquiry here is first focused on whether... [the petitioner] has made a sufficient showing of "actual innocence...")

B. Holloway's Difficulties With The Law. Resolution of whether Holloway has made the necessary actual innocence showing involves delving more deeply into the history of this case which is mired in ambiguity and confusion. To that task the court now proceeds.

On February 21, 2003, a Randolph County, Alabama grand jury returned an indictment against Holloway. Count one[4] of the indictment (doc. # 23-2 at 29) charged him as follows:

The Grand Jury of said County charge that before the finding of this Indictment W... L... H..., alias, a male whose name is otherwise unknown to the Grand Jury, did engage in sexual intercourse with N... a female, who was less than twelve years of age, the said W... L... H... being sixteen years of age or older and at least two years older than the said N... H..., in violation of Section 13A-6-62 of the Code of Alabama, against the peace and dignity of the State of Alabama.

The facing page of the standard indictment form used for the indictment listed this charge as "RAPE 1"." (Doc. # 23-2 at 30). However, rape in the first degree is set forth in Alabama law at § 13A-6-61, not § 13A-6-62.

(a) A person commits the crime of rape in the first degree if:

(1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion; or

(2) He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being physically helpless or mentally incapacitated; or

(3) He or she, being 16 years or older, engages in sexual intercourse with a member of the opposite sex who is less than 12 years old.

ALA. CODE § 13A-6-61.

Given the language used in the indictment which tracks in part the statutory language of the first degree rape statute by referring to the victim as less than twelve years of age and the defendant as a person sixteen years of age or older, it is obvious that the grand jury did indeed intend to charge the defendant with first degree rape and that the reference to "Section 13A-6-62[5] of the Code of Alabama" was a mere typographical error.

As evidenced by the record in Holloway v. Davenport, 3:11-cv-436-WKW (M.D. Ala. 2013), these Randolph County indictments were not Holloway's only difficulties with the law.[6] On March 22, 2003, Holloway was indicted in Calhoun County, Alabama for sodomy in the first degree.[7]

The Grand Jury of Calhoun County charge that, before the finding of this indictment,

WILFORD LYN HOLLOWAY

whose true name to the Grand Jury is otherwise unknown, did, on or about sometime between and or including the dates of November 17, 2001 through December 2, 2001, engage in deviate sexual intercourse with M... D... W... by forcible compulsion, in violation of Section 13A-6-63 of the Code of Alabama...

(Doc. # 27-6, 3:11-cv-436-WKW).

On the same date, Holloway was also indicted in Calhoun County for rape in the first

The Grand Jury of Calhoun County charge that, before the finding of ...

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